Vice Chancellor vs Jagannath Patra & Another
2021 Latest Caselaw 3641 Ori

                          ORISSA HIGH COURT: CUTTACK
AFR                                 F.A.O. No.556 of 2015

               In the matter of an application under Section 30 of the
               Employees Compensation Act, 1923;

                                          ----------

Vice Chancellor, Rabindra Bharati Biswabidyalaya, 56-A, BT Road, Kolkata & another ... .... ... Appellants

-versus-

               Jagannath Patra & another        ...    ...              ...         Respondents


                   For Appellants              : Mr.Ashok Mohanty,
                                                            (Senior Advocate),
                                                 M/s. P.Choudhury, P.Sinha,
                                                      B.Mekap, M.K.Samantray,
                                                      S.B.Mohanty &
                                                      S.S.Mohapatra.
                   For Respondents             : Mr. S.Das.
                                                      (For Respondent Nos.1 & 2)


                                    Date of Hearing     : 01.03.2021
                                    Date of Judgment : 16.03.2021


                   THE HONOURABLE MR. JUSTICE BISWANATH RATH


      Biswanath Rath,J.       This is an appeal at the instance of the employer

under Section 30 of the Workmen's Compensation Act, 1923

arising out of judgment passed by the Asst. Labour

Commissioner-cum-Commissioner for Workmen's Compensation,

Bhubaneswar in W.C. Case No.134 of 2014.

2. Short background involving the case is that legal

heirs of the deceased employee filed a case under Employees

Compensation Act claiming appropriate compensation for death of

the deceased Susanta Patra in course of his duty as a cook in

Dr.B.R.Ambedkar Boys Hostel at about 6 P.M on 18.05.2015. It

is claimed that while the deceased was pouring hot dal, suddenly

his leg slept and he fell down on the Dal Karai and got burnt.

Immediately after the accident, he was shifted to the R.G. Kar

Hospital for treatment by the help of the students and staff of the

Hospital. After 7 days of the incident, on 25.05.2013 at about

10.45 P.M. the treating physician declared him to be dead. A

criminal case was instituted by Tala Police Station vide No.525

dtd. 26.05.2013 and P.S. G.D.E. No.2066 dtd.26.05.2013 and

Baranagar P.S. G.D.E. No.2345 dtd. 26.05.2013. Vide P.M.No.944

dtd.26.5.2013, postmortem was also conducted on the dead

body. The claimants claiming the deceased was 31 years old

and was the only earning member of their family, for them

sustaining heavy and irreparable loss due to sudden and

unexpected death of their sole bread earner, the applicants under

the premises that the deceased was getting a sum of Rs.6,000/-

per month from the Hostel Superintendent working as a cook in

the hostel under the employment of the University, claimed

Rs.8,00,000/- as compensation.

2. On receipt of notice, the opposite parties, the present

appellants appeared and filed their written statement stating that

the deceased was never an employee of Rabindra Bharati

Biswabidyalaya in any capacity either as a full time worker or

part time or casual or on daily basis or in any other capacity. It

is rather claimed by the appellants that the hostel of Rabindra

Bharati Biswabidyalaya for boys was running by different

vendors, who are given contract to run the hostel from time to

time on contractual basis and the Biswabidyalaya is only the

signatory in the contract with the vendors and therefore it is

claimed that they have no liability in such issue.

3. To establish their case, the claimants have filed the

copies of the investigation report regarding the particulars of

employment of the deceased, nature of work and circumstances

leading to the death of the deceased. Postmortem report, salary

slip and some medicine bills were also filed. This apart, the

claimants have also examined P.W.1 as one of the witnesses

appearing to be father of the deceased. Entering into contest, the

appellants-respondents therein contested the case by filing

written statement. They also adduced evidence by producing one

Balaram Majumdar, who was claimed to be working in the said

hostel as Hostel Superintendent and was present at the time of

such occurrence as OPW.1. On the basis of claim and counter

claim, the Commissioner framed the following issues:

1. Whether the deceased was an employee within the meaning of E.C. Act and working under the Opp. Parties at the time of his accident?

2. Whether the accident arose out of and in course of the applicants employment?

3. Whether the amount of compensation as claimed by the applicants is due, or any part thereof?

4. Whether the Opp. Parties are liable to pay such compensation as is due? If yes, by whom payable.

4. Basing on the materials available on record, the

Commissioner came to hold all the issues in favour of the

claimants and as a consequence by the final judgment directed

the opposite parties, the present appellants to pay compensation

a sum of Rs.6,17,850.00 in lump sum and without any interest.

It was also directed that failure of deposit of the awarded sum

within 30 days from the date of receipt of the order, penalty and

interest @ 12% shall also be imposed.

5. Challenging the judgment passed by the Asst. Labour

Commissioner-cum-Commissioner for Workmen's Compensation,

Odisha, Bhubaneswar in W.C. Case No.134 of 2014, Sri Asok

Mohanty, learned Senior Advocate while reiterating the grounds

of challenge in the memorandum of appeal submitted that for the

employee involved herein was engaged by the contractor, there

was no liability with the institution. For there being no

establishment by the claimants as to under which contractor the

deceased was working, Sri Mohanty, learned Senior Advocate

contended that the judgment impugned becomes bad. Sri

Mohanty, learned Senior Advocate also challenging the impugned

judgment on the premises that there was no employer &

employee relationship. It is also claimed that the deceased

cannot be considered as a workman for his nature of work. The

impugned judgment was also contested on the premises that the

award is not only excess but also exorbitant and therefore

computation without any basis. Mr. Mohanty, learned Senior

Advocate during course of submission also raised a legal point

taking resort to the definition of Manufacturing Process under the

Factories Act, 1948 and claimed that the definition having not

been extended to the State of West Bengal, where the accident

occurred, the impugned judgment also suffers for the claim of the

petitioner not being covered under the definition of Manufacturing

Process under Section 2 k of the Act, 1948. Taking this Court to

the definition of the amendment submitted definition not

covering the State of West Bengal involving cause of action

involved herein, Sri Mohanty, learned Senior Advocate contended

that the impugned judgment remains otherwise bad in law.

6. Sri S.Das, learned counsel appearing for the Claimant

Nos.1 and 2 while reiterating the plea of the claimants before the

Commissioner, referring to Section 2 (1) (dd) of the Employee's

Compensation Act, 1923 contended that the claim was made on

the premises of the deceased being an employee and therefore it

remains immaterial whether he was a cook or anything else.

For the word workman has the definite meaning under the Act,

1923, the case of the claimants is well covered. Adverting to the

claim of Sri Mohanty, learned Senior Counsel that the deceased

does not satisfy to be involved in a Manufacturing Process as

defined under (k) of the Section 2 of the Factories Act, 1948,

referring to two decisions in the cases of Idandas Vs. Anant

Ramchandra Phadke (Dead) by Lrs., 1982, AIR (SC) 127 and

Commissioner of Income Tax, Gujarat Vs. Ajay Printery

Private Ltd.,(1965) 58 ITR 811, Sri Das, learned counsel

however attempted to extend the coverage of the judgment

referred to hereinabove to the case of the claimants.

7. Considering the rival contentions of the parties and going

through the materials available on record, this Court finds there

is no dispute that there is an accident involving the death of the

cook-the deceased here while working in a hostel involving food

preparation. He was also at the age of 31 years hardly on the

date of incident. This Court noticed here through the evidence of

OPW.1 functioning as Hostel Superintendent at the relevant point

of time, who in his deposition, while admitting to be the

Superintendent of Dr.B.R. Ambedkar Boys Hostel where the

deceased was working as a cook since last four and half years.

He admitted that the deceased was working in the hostel in the

capacity of cook. He also admitted that on 18.05.2013 the

deceased after cooking the Dal while keeping the Dal Karai on the

floor, he got slept on the floor and suddenly fell down into the Dal

Karai. The Superintendent has also admitted the death of the

deceased in such process. In the cross examination the

Superintendent by the appellants also appears to have stated

that he had also admitted that the deceased Sri Patra was

working since last 5 years. It is in the premises, there remains

no doubt that the deceased was a worker in an University and

there also remains master & servant relationship between the

both. It is in this contest of the matter, this Court has no

hesitation to conclude that the deceased was a worker at the

relevant point of time and is well covered by the provisions under

the Employees Compensation Act, 1923. For Sri Mohanty,

learned Senior Advocate concentrating on the death of

employee not involving in any manufacturing process under the

definition of Factories Act, 1948, this Court on scan of the

judgment referred to by the counsel for the respondents though

finds both the judgment stand on different footing but however

finds through the decision in the case of Bombay Anand

Bhavan Restaurent Vs. Deputy Director, Employees' State

Insurance Corporation & another, with another similar case,

(2009) 9 SCC 61, the Hon'ble Apex Court held cooking and

preparation of food item clarifies manufacturing process.

Similarly, through the decision involving 1994 LIC 1213, it has

been observed supply of food and breveries to a cricket club

must be a sale to its guest and well covered by definition of

manufacturing process. In case of Kanwarji Bhagirathmal Vs.

Employees State Insurance Corporation, (2005) 118 DLT

759, it has been observed that the act of Halwai in making of

sweetmeats and salted eatables in his shop also involves

manufacturing process. For the argument of the claimants that

the deceased died while working under the University, being

clearly corroborated by the University's own witness OPW 1, who

is none else than the Superintendent working at the relevant date

in the Hostel, this Court finds, there is right consideration of the

issue involved by the Commissioner in deciding W.C. Case

No.134 of 2014 leaving no scope for this Court to interfere in

the impugned judgment, which is hereby confirmed. For the

amount already kept in fixed deposit by order dated 14.10.2015

passed in Misc. Case No.795 of 2015, the deposited amount

along with accrued interest be released in favour of the claimants

forthwith. Further, this Court since finds the impugned judgment

was passed on 31.7.2015 with a direction to deposit the amount

within 30 days provided the compensation has not been

deposited within 30 days from 31st July, 2015, the claimants are

entitled to penalty and interest @ 12% per annum from expiry of

30 days i.e. from 31st July, 2015 till 30th September, 2015.

8. Appeal fails but, however, no costs.

....................................

Biswanath Rath, J.

Orissa High Court, Cuttack The 16th day of March, 2021/sks.